DWAYNE EDWARD EMMERSON Claimant - v. -, 2016 NSSM 19

Claim No: SCCH-448821 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Emmerson v. Lozier, 2016 NSSM 19 BETWEEN: DWAYNE EDWARD EMMERSON Claimant - and - LACEY ROSE ANNE GAIL LOZIER Defendant REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Halifax, Nova Scotia on May 17, 2016 Decision rendered on May 24, 2016 APPEARANCES For the Claimant self-represented

For the Defendant self-represented BY THE COURT : Introduction [ 1 ] The Claimant is suing the Defendant for $25,000.00 for what he contends are debts, arising from their fairly brief common law relationship in 2015. [ 2 ] The Claim essentially has two components. Approximately $12,000.00 is for the purchase of an automobile that was purchased early in their relationship, in March 2015.

The balance is in part for amounts that he says were run up on his credit card by the Defendant, and expenses that he paid for which he says the Defendant promised to pay back. [ 3 ] The relationship began in early 2015, when both parties were living in or near Moncton, New Brunswick. The Claimant had been working, on and off, in Alberta. The relationship was in trouble by June 2015, with the Claimant moving out of the Defendant’s home. It was indisputably over by September. The car claim [ 4 ] Dealing first with the car, the following facts are not in dispute: a. The Defendant already owned a vehicle. b.

The Claimant did not own a vehicle. c. The parties travelled together up to Bathurst, New Brunswick to look at a 2008 Dodge Nitro that was for sale at a Kia dealership. The price was $10,338.90 plus some extras and tax, for a total of $12,922.99. d. The purchase was transacted on March 27, 2015 in the Claimant’s name. e. The Claimant provided a $3,000.00 down payment, and borrowed the balance ($9,922.99) through T-D Auto Finance. f. It was arranged that automatic monthly loan payments of $234.96 were to be taken from the Defendant’s bank account.

After the parties separated in June 2015, the Claimant sent e-transfers to the Defendant to cover the loan payments. g. The vehicle was principally driven by the Claimant, and only very occasionally by the Defendant. h. Some months after the parties ended their relationship, the Defendant no longer wanted any responsibility for making payments, despite the fact that the Claimant was sending her the money. She warned him that he would have to start making payments directly, which he never did, and eventually the car was repossessed. i.

The Claimant says the Defendant should be responsible for everything he spent, and lost, on the car.

[5] The Claimant’s theory put forward to the court was two-fold. First, he says that this vehicle purchase was for the Defendant’sbenefit, and the only reason it was put in his name was because he had better credit and could get a better interest rate on the loan. Secondly, he stated that the Defendant wanted to give him the car as a gift. These two theories are curiously incompatible, and it isdifficult for me to understand how they can be put forward as alternatives. [6] The Defendant says that it was the Claimant who needed a car, as she already had one. It was the Claimant’s car and hisresponsibility.

She allowed payments to come through her bank account because, at the time, they were a couple and sharing expenses,but once they broke up she did not accept that she had financial responsibility. She says she continued making the payments, so long ashe supplied the money, for a short time as they were still unsure whether the relationship was at an end, but she eventually wanted toavoid any point of contact so put and end to this arrangement.

After they split, it was the Claimant who had possession of the car, andshe got no benefit from it. [7] There is nothing in writing that evidences their understanding, so determining which of these theories is closest to the truthrequires a finding of credibility. This is not just a matter of trying to discern who might be lying; i.e. it is not merely “he said, she said.” Often, people on both sides are generally truthful people, but become wedded to their perceptions and honestly believe that they aretelling the truth. They cannot both be right.

It would be a mistake for the court merely to listen to the testimony and try to discernthrough mannerisms and such that one person is lying and the other is telling the truth. [8] There is a well-worn test that has been used by courts and tribunals for over 50 years. The BC case of Faryna v Chorny (1952) (BC CA), 2 DLR 354 is perhaps the most frequently cited case of the subject of credibility assessment.

At p.357 theBC Court of Appeal says: “The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether thepersonal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examinationof its consistency with the probabilities that surround the currently existing conditions.

In short, the real test of the truth the story of awitness in such a case must be its harmony with the preponderance of the probabilities which are practical and informed person wouldreadily recognize as reasonable in that place and in those conditions.” [9] The inherent probabilities favour the Defendant’s version of the events. It simply lacks credibility that the Claimant would havepaid money down, taken out a loan and registered a car in his name, that was in fact the Defendant’s car.

The theory of a “gift” does notseem at all likely, and moreover the law is very suspicious of gifts unless there is clear evidence of a “donative intent” - the intention togive property to another person. [10] Virtually everything points to this being a purchase by the Claimant for his own benefit. The fact that the Defendant initially madethe monthly payments is consistent with a relationship where expenses were being shared, and while they were together the Defendanthad the available cash flow. [11] The Claimant’s conduct after the split is also entirely consistent with the vehicle being his, and his alone.

He started sending hermoney to make the payments. He took the car with him. He abandoned it. [12] I completely reject the theory of a gift, as there is virtually no evidence that a gift was intended. It would be a strange gift wherethe supposed recipient (the Claimant) makes the down payment and takes out a loan in his name for the balance of the price. TheClaimant’s theory is simply at odds with the way people typically behave. The entire transaction is consistent with the scenario that theDefendant put forward.

There are no facts inconsistent with this theory. [13] As such, the Defendant has no responsibility for either the purchase of the car, or its loss and the debts that remained. TheClaimant has only himself to blame for losing the car and its value. He should have continued making payments, or at least sold the carbefore allowing it to be repossessed, in order to recover some or all of its value. Even if he had a legitimate claim against the Defendant,which he does not, he still had a duty to act reasonably and minimize his losses. He failed in this duty. The claim for purchases

[ 14 ] The nub of the Claimant’s theory is that during the months that he and the Defendant were dating and living together, he spent more money than she did on purchases of all kinds, including necessities such as food and gas, and luxuries that they enjoyed together. He says that he came out of the relationship poorer than when they started, while the Defendant (he says) came out financially ahead.

The documentary evidence that he provided to back up this theory consisted of both of their credit card and bank account statements for the relevant time. [ 15 ] Having reviewed the statements, I will observe that the parties do seem to have been spending a lot during the time they were together. There are a lot of cash withdrawals by both of them, as well as a lot of Interac and credit card purchases.

However, neither party’s bank or credit card balances appears to have changed much during that time. [ 16 ] Even had I been able to determine that the Defendant came out ahead, the Claimant has misconceived the role that this court plays. [ 17 ] In the case of Cook v. Orr , 2008 NSSM 23 , I discussed the nature of cases by former common law spouses against each other: [4] It is a common misconception that property (as opposed to support) issues following separation of a common law couple may be dealt with in the same way as if the parties had been married.

Issues of child and spousal support fall under the Maintenance and Custody Act , which provides relief for unmarried couples that have lived as spouses for two years. That Act does not deal with property. Only the Matrimonial Property Act does. [5] The Matrimonial Property Act does not yet (any may never) apply to common law couples.

As such, for unmarried couples property issues by and large fall to be determined under principles of basic contract and property law, with principles of unjust enrichment coming into play. .......... [7] When a claim like this is brought, the threshold question to be asked is: what was the agreement or contract that the spouses entered into, or the general understanding that they had? [8] The mere fact that money changed hands, or that one party contributed more money to the joint household, does not automatically mean that there should be a return of money or any other form of financial reckoning.

In order for such adjustments to be made, there must have been an agreement or understanding that one party has not honoured after the fact.

That agreement may have been very clearly articulated, as some people are inclined to do, or it may have been more subtle and essentially have been implied in the arrangements. [9] A contract to share expenses with a spouse in a particular way, or a contract to borrow money from one’s spouse, is legally enforceable, if the necessary facts can be proved. [ 18 ] In the later case of Rayner v Smith , 2010 NSSM 6 , adjudicator Richardson cited Cook and made the following statements: [37] When people join together in a common law relationship they often merge their finances.

The income and expenses of one become the income and expenses of both. As well, the way in which that common burden is shouldered varies from couple to couple. In one all income and expenses may be tracked and shared on a 50/50 basis; in another, on a pro-rated basis; and in a third, one partner may pay all the basic living expenses while the other contributes to the joint retirement savings.

The fact then that a loan is taken out in the name of one does not mean class=WordSection3> necessarily that it is for the benefit of that person alone–it may be for and often is for the benefit of both. ..... [40] The third difficulty is that notwithstanding the fact that the parties are in a “common law” relationship it remains the case that they have chosen not to marry. Marriage by law legitimizes the notion of the common good. It signals an agreement to be bound by the

provisions of the Matrimonial Property Act. It thereby ensures to some extent that financial burdens are prima facie assumed to be jointburdens and hence joint liabilities. Those who do not marry cannot rely upon that assumption. For whatever reason they have chosen notto be governed by the same law that governs married couples: see, in general, Attorney General of Nova Scotia v. Walsh 2002 SCC 83, [2002] 4 SCR 325 at paras.35, 40, 43, 49.

And it means as a result that a common law partner who decides unilaterally to incura debt cannot automatically assume that the burden of that debt will be shared by his or her partner, even if that partner takes someadvantage from the debt. Whether or not the burden was jointly assumed will have to depend upon the facts of each case. [19] Boiled down, the Claimant is seeking a reconciliation of moneys spent during the relationship, and an adjustment to reflect what hesays was the inequitable end result.

What is missing, however, is any evidence of an agreement as to how expenses would be shared,and a further agreement to the effect that one party would be indebted to the other as a result of not paying her fair share. Had the partiesbeen married, the law would have attempted to equalize matrimonial property and debt.

But where there is no marriage, there is no suchreconciliation unless the parties have established an agreed-upon financial regime that one party seeks to disown, after the fact. [20] What I see here is a Claimant who, perhaps, was generous and a free spender during the relationship, but who later came to regrethis free-spending ways once the relationship was over. Even so, the evidence does not clearly support a finding that the Defendant cameout ahead. The Claimant is somewhat selective in what he includes in his reckoning.

Most significantly, he benefited by living for somemonths in the Defendant’s home, which had a value that he does not acknowledge or quantify. [21] In the result, the Claimant has not established that there was any type of agreement between himself and the Defendant, that shehas breached and that therefore should be enforced by the Court. [22] The law of unjust enrichment does not help the Claimant, as the facts do not support the position that the Defendant has beenenriched unjustly, if at all.

Conclusion [23] In the result, I find no merit in either branch of the Claimant’s case, and the claim is therefore dismissed. Eric K. Slone, Adjudicator